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2018 DIGILAW 759 (GAU)

Kamal Uddin Laskar v. State of Assam

2018-05-08

HITESH KUMAR SARMA

body2018
JUDGMENT : Hitesh Kumar Sarma, J. 1. This appeal, under Section 374(2) of the Cr.P.C., is preferred against the judgment and order, dated 22.09.2016, passed by learned Assistant Sessions Judge, Hailakandi, in Sessions Case No. 116 of 2015, convicting the accused-appellant, under Sections 489(B) of the IPC, to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/-, in default, to suffer simple imprisonment for 3 months. I have heard Mr. HRA Choudhury, learned senior counsel, assisted by Mr. A Ahmed, learned counsel, appearing on behalf of accused-appellant. I have also heard Mr. BJ Dutta, learned Additional Public Prosecutor, Assam. 2. I have perused the impugned judgment and the records of the learned trial Court including the evidence of the witnesses. 3. The prosecution case, in brief, is that on 11.06.2011, at about 5.45 p.m., the informant, Kamlesh Singh, who is a Sub-Inspector of Police of Hailakandi Police Station, lodged an FIR with the Hailakandi Police Station to the effect that at about 4.00 p.m., he along with the Deputy Superintendent of Police (Headquarter) Hailakandi and other police personnel, while on duty, found one person loitering there suspiciously at Boalipar Bazaar. He was searched and fake currency notes totalling Rs. 1,50,000/- was found in his possession. The person is identified as the present accused-appellant, Kamal Uddin Laskar @ Singh and he carried the fake currency notes to sale the same as genuine currency notes. His accomplice, Sakrul Islam Talukdar was also apprehended later on. The aforesaid fake currency notes were seized in presence of the seizure witnesses by the informant/Sub-Inspector of Police Kamlesh Singh himself. 4. On receipt of the FIR, Hailakandi Police Station Case No. 240/2011, under Section 489(B)/34 of the IPC was registered, investigated into, collected evidence, arrested the accused and, finally, on finding materials against the accused-appellant and his co-accused, submitted the charge-sheet against them for commission of an offence, under Section 489(B)/34 of the IPC. 5. On their appearance, after exhausting all required formalities, a formal charge was framed 489(B)/34 of the IPC against the accused-appellant and his co-accused, to which they pleaded innocence and claimed to be tried. Therefore, the trial commenced. 6. To substantiate the allegation against the accused-appellant and the co-accused, the prosecution examined as many as 5 witnesses, including the Investigating Police Officer and the seizure witnesses. The defence examined none. Therefore, the trial commenced. 6. To substantiate the allegation against the accused-appellant and the co-accused, the prosecution examined as many as 5 witnesses, including the Investigating Police Officer and the seizure witnesses. The defence examined none. The defence subjected the prosecution witnesses to cross-examination. The defence case is of total denial. In his statement, recorded under Section 313 Cr.P.C., the accused-appellant denied the fact of commission of the offence alleged. 7. On completion of the trial, the accused-appellant was convicted and sentenced by the learned Assistant Sessions Judge, Hailakandi, as indicated above. 8. PW 5 is the informant and is the person, who had seized the aforesaid fake currency notes amounting to Rs. 1,50,000/- from the possession of the present accused-appellant, vide Ext. 1. The fake currency notes seized are as following denomination:- Sl. No. Number of notes Denomination Sl. No. Total 1. 20 Rs.1000 9AUJ8289J Rs.20000/- 2. 39 Rs.1000 7CSJ4J704 Rs.39000/- 3. 41 Rs.1000 3CH65J244 Rs.41000/- 4. 26 Rs.500 5KP89J990 Rs.13000/- 5. 19 Rs.500 9DT743520 Rs.9500/- 6. 5 Rs.500 JMB730778 Rs.2500/- 7. 14 Rs.500 JLDJ39037 Rs.7000/- 8. 6 Rs.100 OUKJ60480 Rs.600/- 9. 73 Rs.100 4BL5J8950 Rs.7300/- 10. 101 Rs.100 5CE290652 Rs.10100/- 9. These fake currency notes were kept concealed in a polythene bag by the accused-appellant The said polythene bag was seized vide Ext. 2. The fact remains that as per the evidence on record, the accused-appellant was apprehended on the basis of source information and the information got was found to be correct with the detection of the fake currency notes from the possession of the accused-appellant. 10. The PW 3 and PW 4, Sahjahan Laskar and Kamrul Hussain Laskar respectively are the witnesses to the seizure, vide Ext. 1 and Ext. 1(3) and Ext. 1(4) are respectively their signatures in the seizure list make it clear that the fake currency notes were seized in their presence from the possession of the accused-appellant. There is no such inconsistency in the evidence of seizure witnesses with that of the Seizing Officer, PW 5, to show that there is any manner of doubt in respect of recovery of the seized fake currency notes from the possession of the accused-appellant. The PW 3 and PW 4 have supported the evidence of the PW 5 while they deposed that the fake currency notes were recovered from the possession of the accused-appellant in their presence. 11. The PW 3 and PW 4 have supported the evidence of the PW 5 while they deposed that the fake currency notes were recovered from the possession of the accused-appellant in their presence. 11. The learned senior counsel for the accused-appellant has submitted that investigation carried out in this case is, in fact, carried out by the informant himself and although the record shows that the same was endorsed to another Officer, yet the other Police Officer has not been examined by the prosecution, which is a vital lacuna raising doubt in the veracity of the prosecution story. That apart, it has been submitted by the learned senior counsel for the appellant that the possession of the fake currency notes by the accused-appellant even if it is supposed to be correct for a moment for the sake of argument, yet the same was not possessed by the accused-appellant. 12. The provision of Section 489(C) of the IPC do not mandate as a requirement the knowledge of the person possessing the fake currency note. Section 489(B) of the IPC requires knowledge as regards the fake currency note by the accused. However, this being a criminal offence of the instant nature, mens rea is necessary. The possession of the fake currency note by the accused-appellant while found to be proved on the basis of evidence of PW 5, 3 and 4, the accused-appellant needs an explanation for the same as the burden is shifted to him to show as how he could possess the same. 13. From the trend of cross-examination of the witnesses, it does not appear that any attempt has been made by the defence to establish that he was not in possession the fake currency notes as against the corroborative and consistent evidence of PWs 5, 3 and 4 that it was from his possession, seized by the Investigating Police Officer. 14. The learned counsel for the petitioner has submitted that as regards this issue, no incriminating material was brought to the notice of the accused-appellant during his examination under Section 313 of the Cr.P.C. On perusal of the statement, recorded under Section 313 of the Cr.P.C., it is found that all the incriminating materials were brought to his notice and even he was asked whether he has anything to say, but he answered in the negative. He did not opt to explain as to how he possessed the fake currency notes. But, the fact remains that the fake currency notes were seized from the possession of the accused-appellant. 15. On the other hand, it appears from the materials on record that the evidence shows that one Sakrul Islam Talukdar, who was also an accused in the Sessions Case before the learned trial Court, was the source of getting the fake currency notes by the present accused-appellant indicating thereby that he was used in trafficking the fake currency notes. On perusal of the judgment of the learned trial Court it appears that on such materials, the accused-appellant was convicted and sentenced under Section 489(B) of the IPC. The record shows that the aforesaid Sakrul Islam Talukdar was acquitted in the case; therefore, the factum of trafficking of the fake currency notes by the present accused-appellant after obtaining the same from Sakrul Islam Talukdar has not been established. It deserves a mention here that the said Sakrul Islam Talukdar was acquitted by the judgment impugned in this appeal. Therefore, it is succinctly clear that the accused-appellant was in possession of the fake currency notes only. Evidently, knowledge of the accused-appellant that the currency notes found in his possession was fake, the offence could not have been brought under Section 489(B) IPC. Therefore, instead of Section 489(B) of the IPC, the charge is covered by the provisions of Section 489(C) of the IPC. 16. That being so, in the considered view of this Court, the conviction of the accused-appellant under Section 489(B) of the IPC is converted to that of Section 489(C) of the IPC, and accordingly, he is sentenced under Section 489(C) of the IPC, to undergo rigorous imprisonment for 2 and 1/2 years and to pay a fine of Rs. 10,000/-, in default, to suffer simple imprisonment for six months. 17. The period of detention of the accused-appellant during investigation, trial and after the judgment of the learned trial Court, be set off against the substantive sentence imposed upon the accused-appellant. 18. Accordingly, the appeal is partly allowed with the modification indicated at Para-16 above. Send down the LCR along with a copy of this judgment and order.